In the Matter of Brandon D. v Taylor E.
Attorneys and Parties
Brief Summary
Family law — custody/visitation modification and the effect of a criminal court order of protection on Family Court proceedings under Family Ct Act article 6 [governs custody and visitation proceedings in Family Court].
Family Court dismissed the father's article 6 modification petition for lack of standing due to a Criminal Court order of protection with stay-away provisions in favor of the mother and the child, and left the 2020 custody order in place.
The dismissal for lack of standing was reversed and the matter remitted for a best interests determination and a tailored visitation order.
Because the 2021 Criminal Court order of protection expressly permitted contact as authorized by a subsequent Family or Supreme Court order in a custody/visitation proceeding, the father retained standing to seek contact. The father also established a change in circumstances, requiring a best interests analysis; given the time elapsed and expiration of the order of protection, remand was appropriate.
Background
The parties are the unmarried parents of a child born in 2019. A November 2020 custody order granted the mother sole custody with parenting time to the father as agreed. In November 2021, a Criminal Court order of protection in favor of the mother and the child imposed stay-away provisions but contained an express carve-out allowing contact permitted by a later Family or Supreme Court order in a custody or visitation proceeding. In April 2022, the father sought to modify custody/visitation under Family Ct Act article 6 [governs custody and visitation proceedings in Family Court]. In June 2022, he began serving a nine-year determinate sentence following convictions for criminal possession of a weapon in the second degree and attempted burglary in the first degree. The attorney for the child (AFC) proposed supervised written correspondence (and possibly supervised calls) due to the order of protection. Settlement efforts failed; after a hearing, Family Court dismissed the petition for lack of standing based on the order of protection.
Lower Court Decision
Family Court dismissed the father's modification petition for lack of standing upon realizing the order of protection included stay-away provisions for both mother and child, and it continued the 2020 custody order without modification.
Appellate Division Reversal
The Appellate Division held the father had standing because the Criminal Court order of protection expressly allowed Family Court to authorize contact. The court further agreed the father demonstrated a change in circumstances, triggering a best interests analysis. Given the passage of time and the expiration of the order of protection, the court reversed and remitted for any updated fact-finding and for the crafting of a visitation order in the child's best interests.
Legal Significance
A criminal court order of protection does not bar a parent's access to Family Court where the order explicitly permits contact authorized by Family or Supreme Court; in such cases, Family Court must proceed to a best interests analysis rather than dismiss for lack of standing. The decision underscores coordination between courts and the need to honor carve-out language in orders of protection.
When an order of protection contains a carve-out permitting Family or Supreme Court to authorize contact, a parent retains standing to seek custody/visitation relief under Family Ct Act article 6, and the court must conduct a best interests analysis and craft appropriate, potentially supervised, contact rather than dismiss the petition.